Citation NR: 9609440
Decision Date: 04/04/96 Archive Date: 04/16/96
DOCKET NO. 92-20 714 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island
THE ISSUES
1. Entitlement to an increased rating for acne vulgaris,
currently rated as 10 percent disabling.
2. Entitlement to service connection for an acquired
psychiatric disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. P. Havelka, Associate Counsel
INTRODUCTION
The veteran’s active military service extended from August
1970 to October 1972.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a September 1991 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Providence, Rhode Island. That rating decision, in part,
continued a 10 percent rating for acne vulgaris which had
been in effect since October 1972. A June 1995 rating
decision denied service connection for an acquired
psychiatric disorder.
A May 1995 Board decision granted service connection for
seborrheic dermatitis. Subsequently, an October 1995 rating
decision assigned a 10 percent rating for seborrheic
dermatitis, effective in August 1991. In a July 1995
Statement of Accredited Representative in Appealed Case, VA
form 646, and in a January 1996 informal presentation, the
veteran’s representative contends that the 10 percent rating
for the veteran’s seborrheic dermatitis is inadequate and
that this disorder warrants an increased rating. The Board
notes that the veteran has not been furnished the law and
regulations with respect to diagnostic code 7800, which is
the code which his seborrheic dermatitis is rated under. The
Board views these statements as a Notice of disagreement with
the initial assignment of a 10 percent rating for the
veteran’s service-connected seborrheic dermatitis. The issue
of an increased rating for seborrheic dermatitis is referred
to the RO for preparation of a Statement of the Case (SOC).
The case was previously before the Board in May 1995, when it
was remanded for a rating decision on the merits of the
veteran’s claim for service connection for an acquired
psychiatric disorder and issuance of a SOC. The requested
development has been completed. The Board now proceeds with
its review of the appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO committed error in denying
an increased rating for his acne vulgaris. He argues that
his service-connected skin disorder warrants a rating in
excess of that assigned.
The appellant contends that the RO committed error in denying
service connection for a psychiatric disorder. He argues
that he incurred his current psychiatric disorder during
active service. He avers that his service medical records
and service personnel records show that he had an undiagnosed
psychiatric condition for which he should be service-
connected. He asserts, in the alternate, that he had a pre-
existing psychiatric condition which was aggravated during
active service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against an increased rating for the veteran’s
service-connected acne vulgaris. It is also the decision of
the Board that the veteran has not met the initial burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim for service
connection for an acquired psychiatric disorder is well
grounded.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran’s appeal.
2. The veteran’s service-connected acne vulgaris is
manifested by a few scattered papules and papulopustules on
the upper back and shoulders with no residual acne scars.
3. The service-connected acne vulgaris does not result in
more than a 10 percent disability.
4. The veteran’s disabilities do not present an exceptional
or unusual disability picture rendering impractical the
application of the regular schedular standards that would have
warranted referral of the case to the Director of the
Compensation and Pension Service.
5. There is no competent medical evidence of a psychiatric
disorder during service.
6. The earliest medical reports dealing with any psychiatric
disorder are dated years after service and do not relate the
disorder to active service.
7. There is no medical opinion, or other competent evidence,
linking any psychiatric disorder to the veteran’s active
military service.
8. A psychiatric disorder was not manifested during service
or within the first post service year.
9. The veteran has not presented competent evidence of a
nexus between his active service and his current psychiatric
disorder.
10. The veteran has not presented a plausible claim for
service connection for an acquired psychiatric disorder.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 10 percent for acne
vulgaris have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. Part 4, including § 4.7 and Code 7806
(1995).
2. Failure of the RO to consider or document its
consideration of extraschedular ratings and the failure to
refer the case to the Director of the Compensation and Pension
Service is no more than harmless error. 38 C.F.R.
§ 3.321(b)(1) (1995).
4. The veteran has not presented a well grounded claim for
service connection for an acquired psychiatric disorder, and
therefore there is no statutory duty to assist the appellant
in developing facts pertinent to this claim. 38 U.S.C.A.
§§ 101(16), 1110, 5107(a) (West 1991); 38 C.F.R. § 3.303(b)
(1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased Rating for Acne Vulgaris
The veteran’s claim is “well grounded” within the meaning of
38 U.S.C.A. § 5107(a) (West 1991). That is to say that his
assertions that his service-connected acne vulgaris has
increased in severity are plausible. See Proscelle v.
Derwinski, 2 Vet.App. 629, 632 (1992) (where a veteran
asserted that his condition had worsened since the last time
his claim for an increased disability evaluation for a
service-connected disorder had been considered by VA, he
established a well grounded claim for an increased rating).
All relevant facts have been properly developed and no
further assistance to the veteran is required to comply with
the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West
1991).
Service-connected disabilities are rated in accordance with a
schedule of ratings which are based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. Part 4 (1995).
The disability ratings evaluate the ability of the body to
function as a whole under the ordinary conditions of daily
life including employment. Evaluations are based on the
amount of functional impairment; that is, the lack of
usefulness of the rated part or system in self support of the
individual. 38 C.F.R. § 4.10 (1995).
In considering the severity of a disability it is essential
to trace the medical history of the veteran. 38 C.F.R.
§§ 4.1, 4.2 (1995). The veteran’s service medical records
reveal some treatment for skin disorders during active
service.
In February 1973, a VA dermatological examination of the
veteran was conducted. Physical examination revealed papules
on the veteran’s back and chest and superficial scaling on
the veteran’s scalp and feet. The dermatologist’s diagnosis
was of mild, grade I, acne vulgaris on the veteran’s chest
and back and mild bilateral epidermophytosis. In September
1978, another VA dermatological examination of the veteran
was conducted. The examination revealed results similar to
the previous one with the physician noting numerous papules,
and comedones on the veteran’s chest and back.
In October 1994, another VA dermatological examination of the
veteran was conducted. Objective examination revealed that
the veteran had slight scaling and erythema in the scalp,
especially in the periauricular scalp regions. There was
mild scaling and erythema in the eyebrows, along the
nasolabial folds and along the frontal scalp margin. There
were no acneform lesions on the face. A few scattered
papules were observed on the upper back and shoulders. There
were no acne lesion on the chest and no comedones present.
The dermatologist’s diagnosis was of moderately severe
seborrheic dermatitis on the face and scalp, and mild
inflammatory acne vulgaris on the back.
While the regulations require review of the recorded history
of a disability by the adjudicator to ensure a more accurate
evaluation, the regulations do not give past medical reports
precedence over the current medical findings. Where an
increase in the disability rating is at issue, the present
level of the veteran’s disability is the primary concern.
Francisco v. Brown, 7 Vet.App. 55, 58 (1994).
In October 1995, the most recent VA dermatological
examination of the veteran was conducted. Objective
examination revealed that the veteran had moderate scaling
and erythema on the veteran’s cheeks, upper neck and region
of his beard. He had moderate scaling and erythema along the
lower forehead, eyebrows and nasolabial folds. He had slight
scaling and erythema in the conchae of both of his ears, and
moderate scaling and erythema of the scalp. There was a
small scar on the veteran’s forehead which the physician
evaluated, with the veteran’s concurrence, as an old chicken
pox scar. There were a few scattered papules and
papulopustules on the upper back and shoulders. There were
no active acne lesions on the veteran’s chest and no residual
acne scars on the veteran’s chest or back. The examining
dermatologist’s diagnosis was (1) moderately severe
seborrheic dermatitis of the face without any secondary
scarring; and, (2) mild inflammatory acne vulgaris of the
upper back and shoulders with no residual scarring.
When a disability is encountered that is not listed in the
rating schedule it is permissible to rate under a closely
related disease or injury in which the functions affected,
the anatomical location and the symptomatology are closely
analogous to the condition actually suffered from. 38 C.F.R.
§ 4.20 (1995).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates, the criteria
for the higher rating. 38 C.F.R. § 4.7 (1995).
The veteran’s service connected acne vulgaris is currently
rated by analogy as 10 percent disabling under diagnostic
code 7806, eczema. A 10 percent rating contemplates eczema
with exfoliation, exudation or itching involving and exposed
surface or extensive area. A 30 percent rating contemplates
eczema constant exudation or itching, extensive lesions or
marked disfigurement. A 50 percent rating, the highest
assignable under that code, contemplates eczema with
ulceration or extensive exfoliation or crusting and systemic
or nervous manifestations or exceptionally repugnant eczema.
38 C.F.R. Part 4, § 4.118, Code 7806 (1995). None of the
criteria which would warrant a rating in excess of 10 percent
have been shown in this case with respect to the veteran’s
service-connected acne vulgaris.
The evidence is against the veteran’s claim for an increased
rating for his service-connected acne vulgaris. The most
recent VA examination reveals that the veteran has mild
inflammatory acne vulgaris of the upper back and shoulders
with no residual scarring. There are a few scattered papules
and papulopustules on the upper back and shoulders, no active
acne lesions on the veteran’s chest and no residual acne
scars on the veteran’s chest or back. An increased rating
for the veteran’s acne vulgaris requires that he have
extensive lesions or marked disfigurement or exudation or
constant itching which is not shown by the objective medical
evidence of the most recent examination. As such, the
preponderance of the evidence is against an increased rating
for the veteran’s service-connected seborrheic dermatitis.
This case is not shown to be an exceptional case were the
schedular evaluations are inadequate. It does not present an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards. 38 C.F.R.
§ 3.321(b)(1) (1995). The regular schedular standards provide
adequate criteria to properly rate the veteran’s impairment.
Any failure by the RO to refer the case to the Director of the
Compensation and Pension Service for extraschedular
consideration was harmless error.
II. Psychiatric Disorder
The law provides that “a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.” 38 U.S.C.A. § 5107(a) (West 1991).
Establishing a well grounded claim for service connection for
a particular disability requires more than an allegation that
the disability had its onset in service or is
service-connected; it requires evidence relevant to the
requirements for service connection and of sufficient weight
to make the claim plausible and capable of substantiation.
See Franko v. Brown, 4 Vet.App. 502, 505 (1993); Tirpak v.
Derwinski, 2 Vet.App. 609, 610 (1992); Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990).
The three elements of a “well grounded” claim are: (1)
evidence of a current disability as provided by a medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and, (3) a
nexus, or link, between the inservice disease or injury and
the current disability as provided by competent medical
evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995);
see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303
(1995).
Generally, competent medical evidence is required to meet
each of the three elements. However, for the second element
the kind of evidence needed to make a claim well grounded
depends upon the types of issues presented by a claim.
Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). For some
factual issues, such as the occurrence of an injury,
competent lay evidence may be sufficient. However, where the
claim involves issues of medical fact, such as medical
causation or medical diagnoses, competent medical evidence is
required. Id. at 93.
The veteran in this case is essentially claiming that he
suffers from a psychiatric disorder which he incurred during
active service. In the alternate, he is also contending that
he had a psychiatric disorder which preexisted active service
and was aggravated by active service. That is, he is
asserting that his claimed acquired psychiatric disorder was
directly incurred in service, or was aggravated by active
service.
Service connection may be established for a current
disability in several ways, including on a “direct” basis, on
the basis of “aggravation,” and on a “secondary” basis. 38
U.S.C.A. §§ 101(16), 1110, 1131, 1153 (West 1991); 38 C.F.R.
§§ 3.303, 3.304(a), (b), (c), 3.306(a), (b), 3.310(a) (1995).
Direct service connection may be established for a disability
resulting from diseases or injuries which are clearly present
in service or for a disease diagnosed after discharge from
service, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(a), (b), (d) (1995). A
preexisting injury or disease will be considered to have been
aggravated by active military, naval, or air service, where
there is an increase in disability during such service,
unless there is a specific finding that the increase in
disability is due to the natural progress of the disease.
38 C.F.R. § 3.306(a) (1995). Clear and unmistakable evidence
(obvious or manifest) is required to rebut the presumption of
aggravation where the pre-service disability underwent an
increase in severity during service. This includes medical
facts and principles which may be considered to determine
whether the increase is due to the natural progress of the
condition. 38 C.F.R. § 3.306(b) (1995).
Establishing direct service connection for a disability which
has not been clearly shown in service requires the existence
of a current disability and a relationship or connection
between that disability and a disease contracted or an injury
sustained during service. 38 U.S.C.A. § 1110 (West 1991); 38
C.F.R. § 3.303(d) (1995); Cuevas v. Principi, 3 Vet.App. 542,
548 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 143
(1992).
Psychoses may be presumed to have been incurred during active
military service if they are manifest to a degree of
10 percent within the first year following active service.
38 U.S.C.A. §§ 1101, 1112, 1137 (West 1991); 38 C.F.R.
§§ 3.307, 3.309 (1995).
Congenital and developmental defects, such as personality
disorders and mental deficiency are not diseases or injuries
within the meaning of applicable legislation for service
connection purposes. 38 C.F.R. § 3.303(c) (1995).
In this case, the determinative issues presented by the claim
are (1) whether the veteran had a psychiatric disorder during
service; (2) whether he has any current psychiatric disorder;
and, if so, (3) whether the current psychiatric disorder is
etiologically related to active service. The Board concludes
that medical evidence is needed to lend plausible support for
all of the issues presented by this case because they involve
questions of medical fact requiring medical knowledge or
training for their resolution. Caluza v. Brown, 7 Vet.App.
498, 506 (1995); see also Layno v. Brown, 6 Vet.App. 465, 470
(1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992).
The veteran’s service medical records appear to be complete.
There are entrance and separation examinations as well as
treatment records spanning the period of time of the
veteran’s two years of active service. The veteran’s July
1970 entrance examination shows that he was psychiatrically
normal with no abnormalities noted by the examining
physician. His July 1972 separation examination also does
not reveal any noted psychiatric abnormalities. There is a
single entry in the veteran’s service medical records which
reveals that he requested a psychological consultation. The
July 1972 psychological evaluation reveals that the veteran
was well oriented and in contact with reality. He complained
of disappointment with the present system under which he
worked. The physician noted that “I can find no basic
deficit of personality of interest.” The veteran was
returned to duty with a recommendation for more rigid
structuring of the veteran’s daily activities.
The veteran’s service personnel records were also obtained.
His enlisted performance record revealed consistently low
marks on his performance evaluations over the entire period
of his active service. A March 1971 notation reveals that
the veteran had problems adapting to military service. He
required frequent supervision and had difficulty relating to
superiors, rules and regulations. An August 1972 notation
reveals that the veteran was not recommended for
reenlistment. He was considered immature, and was constantly
creating problems with petty officers over trivial matters.
Subsequent entries revealed that the veteran required
constant supervision of his duties to ensure proper
performance.
A September 1984 letter from the Providence Center for
Counseling stated that the veteran had been treated by the
center for a bipolar disorder since 1979. The letter related
that the veteran required treatment of his condition with
medication and that everyone in the veteran’s immediate
family suffered from psychotic illness. Nothing in this
letter indicated that the veteran’s psychosis existed prior
to 1979, nor did the letter in any way relate the veteran’s
diagnosed bipolar disorder to his active service.
The veteran was hospitalized at a state mental hospital for
approximately two weeks in November 1984. The discharge
summary reveals a diagnosis of adjustment disorder with
depressed mood with the possibility of schizophrenia or a
bipolar disorder. The veteran was also diagnosed as having a
passive-aggressive personality disorder. On attached social
service assessment notes, the veteran indicated that he first
developed mental problems within the past year. Nothing in
any of the medical evidence from the state mental hospital in
any way relates the veteran’s psychiatric disorders to his
active service.
In March 1985, a VA psychiatric evaluation of the veteran was
conducted. The veteran indicated that he was on lithium
medication to control his manic-depressive disorder. The
examining psychiatrist reviewed the veteran’s claims file and
all of his service medical records and service personnel
records, as well as the private medical evidence relating to
the veteran’s psychiatric disorders. The psychiatrist’s
diagnosis was of a bipolar disorder and a passive-aggressive
personality disorder. His opinion, on reviewing all of the
evidence of record, was that the history of adjustment
problems in school and service were indicative of an
underlying personality disorder. However, there was no
indication of the veteran’s bipolar disorder during active
service or before the first confirmed diagnosis in 1979.
In December 1989 the veteran has hospitalized at a VA medical
center (VAMC) for psychiatric reasons after he took an
overdose of lithium. The diagnosis was bipolar disorder. VA
outpatient treatment records for 1989 to 1992 were obtained.
A single treatment record dated October 1991 reveals a
diagnosis of depression.
The evidence is against the veteran’s claim for service
connection for a psychiatric disorder. The medical evidence
of record reveals that the veteran does have a medically
diagnosed psychiatric disorder. The most prevalent diagnosis
is that of a bipolar disorder for which the veteran is
treated with medication. The first medical diagnosis of this
disorder was in 1979, seven years after the veteran separated
from active service and, as such, well beyond the one year
presumptive period which would permit service connection for
a psychosis. There is no indication in any of the veteran’s
service medical records or service personnel records that he
suffered from a psychiatric disorder during active service.
None of the medical evidence subsequent to the veteran’s
service in any way relates the veteran’s bipolar disorder to
his active service. The veteran is also diagnosed with a
passive-aggressive personality disorder. However as we have
noted above, personality disorders are not diseases or
injuries within the meaning of applicable legislation for
service connection purposes. 38 C.F.R. § 3.303(c) (1995).
There is no competent medical evidence that the veteran had
any psychiatric disorder during active service. Both his
entrance and separation examinations failed to show any
psychiatric abnormalities and a psychological evaluation by a
medical officer failed to show any psychiatric disorder. The
veteran was first diagnosed with a bipolar disorder 7 years
after service and no medical evidence relates the veteran’s
diagnosed bipolar disorder to his active service. With no
competent medical evidence of any psychiatric disorder during
active service and no competent medical evidence linking his
current psychiatric disorders to active service, the veteran
does not meet the second and third elements required for his
claim for service connection for a psychiatric disorder to be
well grounded. See Caluza, 7 Vet.App. at 506.
The Board notes that in an August 1994 Remand the Board
stated that the veteran had presented a well grounded claim.
Upon review, we note that the Remand was for a VA examination
for the purposes of ascertaining the degree of disability
associated with the veteran’s service-connected skin
disorders. The Board specifically noted that the veteran’s
claim for service connection for a psychiatric disorder did
not require further development. As such, the Board language
as to the veteran’s claims being well grounded referred only
to the veteran’s claim for an increased rating. See
Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (where a
veteran asserted that his condition had worsened since the
last time his claim for an increased disability evaluation
for a service-connected disorder had been considered by VA,
he established a well grounded claim for an increased
rating). However, even if the language of the 1994 Remand
implied that the veteran’s claim for service connection for a
psychiatric disorder was well grounded, such statement was
made prior to the guidance that The United States Court of
Veterans Appeals (Court) provided with respect to well
grounded claims in Caluza v. Brown, 7 Vet.App. 498, 506
(1995). The Court in Caluza clarified the requirements for
the veteran to submit a well grounded claim in the
nonadversarial VA adjudication process. See Caluza v. Brown,
7 Vet.App. 498, 506 (1995); see also 38 U.S.C.A. § 1110
(West 1991); 38 C.F.R. § 3.303 (1995). Based on the
applicable statutory law, VA regulations and Court decisions,
the veteran has not submitted a well grounded claim for
service connection for a psychiatric disorder.
The Board has thoroughly reviewed the claims file. However,
we find no evidence of any plausible claim. Since the
veteran has not met his burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that his claim is well grounded, it must be
denied.
Where the veteran has not met this burden, the VA has no duty
to assist him in developing facts pertinent to his claim and
no duty to provide him with another medical examination.
38 U.S.C.A. § 5107(a) (West 1991); Rabideau, 2 Vet.App. at
144 (where the claim was not well-grounded, VA was under no
duty to provide the veteran with an examination). However,
where a claim is not well-grounded it is incomplete, and
depending on the particular facts of the case, VA may be
obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of
the evidence needed to complete his application. See
Robinette v. Brown, 8 Vet.App. 69, 77 (1995). In this case,
the RO substantially complied with this obligation in a June
1995 Statement of the Case (SOC). Moreover, this Board
decision informs the veteran of the evidence that is lacking
to make his claim well grounded.
Although the RO did not specifically state that it denied the
veteran’s claim on the basis that it was not well-grounded,
we conclude that this error was harmless. See Edenfield v.
Brown, No. 92-1263 (U.S. Vet. App. November. 1, 1995)(en
banc).
ORDER
An increased rating for acne vulgaris is denied.
Because it is not well-grounded, the veteran’s claim for
service connection for an acquired psychiatric disorder is
denied.
BETTINA S. CALLAWAY
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402 (1988). The date which appears on
the face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans’ Appeals.
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